Anti-Racism and the Workplace: Employment Challenges and Opportunities in the US

July 23, 2020

squirepattonboggs.com Presenters

Carmen Cole Katharine Liao Meghan Hill Partner, Los Angeles and Atlanta Partner, New York and Los Angeles Partner, Columbus and New York T +1 213 689 5189 T 1 212 872 9804 T +1 614 365 2720 E [email protected] E [email protected] E [email protected]

squirepattonboggs.com 2 Agenda

• Demonstrating Care for BIPOC Employees

• Addressing Employee Conduct on Social Media

• Managing and Responding to Leave of Absence Requests

• Reconciling Value Statements with Legal Obligations

squirepattonboggs.com 3 Demonstrating Care for BIPOC Employees

squirepattonboggs.com Demonstrating Care for BIPOC Employees

• Pronounced “bye-pok” • Who are BIPOC employees?

• Black, Indigenous and People of Color

• Any non-white employee

• Why use this terminology?

• Acknowledges that various groups of “non-white” people experience racial injustice differently

squirepattonboggs.com 5 EMPLOYER AND LEADERSHIP DO’S & DON’TS

DO – treat employees with compassion DO – your own research around race relations in America DO – be active against racism as opposed to passively not endorsing it DO – issue an authentic corporate statement expressly condemning racism DO – acknowledge intersectionality DO – listen to BIPOC employees and their stories and BELIEVE THEM DO – evaluate diversity in the workplace on an ongoing basis

squirepattonboggs.com 6 EMPLOYER AND LEADERSHIP DO’S & DON’TS

DON’T – engage in isolated, performative activism/allyship DON’T – lead with condemning looting; re-focus conversations around the underlying reason for it DON’T – assign more work to BIPOC employees (e.g., lead the D&I initiative, organize a town hall) DON’T – engage in racial “gaslighting”

squirepattonboggs.com 7 What is Racial Gaslighting?

“Racial Gaslighting” is a tactic used to diminish the credibility of accusations of racism and shift the scrutiny onto the accuser – forcing them to question and re-asses their own response to the racism, rather than the racism itself.

squirepattonboggs.com 8 Racial Gaslighting Examples

• “But what about black on black crime?” • “Well…other people are dying, too.” • “I don’t see color.” • “I can say that because my best friend/boyfriend/spouse is black.” • “But we had a Black President, so hasn’t there been enough change?”

squirepattonboggs.com 9 Addressing Various Types of Employee Conduct on Social Media

squirepattonboggs.com National Labor Relations Act

Who is subject to the NLRA/NLRB?

Section 7: Employees may discuss wages and other terms of employment and may take “concerted” action in an effort to improve their working conditions.

“Concerted activity”: when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.

In union or non-union environments

squirepattonboggs.com 11 Category 1: Rules that are Generally Lawful to Maintain

A. Civility rules

B. No-photography rules and no-recording rules

C. Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations

D. Disruptive behavior rules

E. Rule protecting confidential, proprietary, and customer information or documents

F. Rules against defamation or misrepresentation

G. Rules against using employer logos or intellectual property

H. Rules requiring authorization to speak for company

I. Rules banning disloyalty, nepotism, or self-enrichment

squirepattonboggs.com 12 Category 2: Rules Warranting Individualized Scrutiny

Possible examples:

• Broad confidentiality rules

• Rules prohibiting disparagement of employer

• Rules prohibiting use of employer’s name

• Rules restricting employees from speaking to the media generally

• Rules banning off-duty conduct that would harm employer

• Rules prohibiting false or inaccurate statements

squirepattonboggs.com 13 Category 3: Rules that are Unlawful to Maintain

A. Confidentiality rules specifically regarding wages, benefits, or working conditions B. Rules against joining outside organizations or voting on matters concerning employer

squirepattonboggs.com 14 Review Your Policies - Social Media Policies Should Still Reinforce Workplace Rules

• Internet use on company devices/networks is subject to monitoring • Confidentiality and non-disclosure requirements apply for employees and patients (HIPAA) • Harassment and discrimination policies apply • No employees may speak as company representatives without authorization

squirepattonboggs.com 15 Employee’s Political Activities or Opinions

Broward Co., Florida New Mexico California New York Colorado North Dakota Guam Puerto Rico Illinois Seattle, Washington Iowa South Carolina Louisiana Utah Madison, Wisconsin West Virginia Minnesota Urbana, Illinois Missouri Virgin Islands Nebraska Washington DC Nevada Virgin Islands squirepattonboggs.com 16 Employee’s Lawful, Off-Duty Activities

California Colorado New York North Dakota

squirepattonboggs.com 17 California – Labor Code Sections 96(k) and 98.6

California

Prohibits demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.

squirepattonboggs.com 18 Colorado § 24-34-402.5

Employer may not terminate the employment of any employee due to the employee engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction: Colorado (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

squirepattonboggs.com 19 New York Labor Law 201-d

Employer may not discriminate in employment because of:

• Political activities • Lawful, leisure-time activity, for which the employee receives New York no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material Outside working hours, off the employer’s premises and without use of employer’s equipment or property

squirepattonboggs.com 20 North Dakota § 14-02.4.01

Employers are prohibited from discriminating against employees on the basis of participation in lawful activity North Dakota off the employer’s premises during nonworking hours which is not in direct conflict with the essential business- related interests of the employer

squirepattonboggs.com 21 Connecticut – Right to Free Speech

Employers are prohibited from disciplining or discharging an employee on account of the exercise of rights guaranteed by the First Amendment of the US Constitution • Religion Connecticut • Speech • Press • Peaceably assemble • Petition the government

squirepattonboggs.com 22 Key Questions to Ask

Is the conduct Are customers committed within viewing the the course and discriminatory/ scope of harassing social employment? media content? If so, is the content directed at the customers? Are employees viewing the discriminatory/ Is the conduct in a harassing social work-related media content? If so, context if it takes is the content directed place outside of at the employee/ work or is there workplace? any link to the workplace?

squirepattonboggs.com 23 Think Before You Tweet: What We Are Seeing on Social Media

squirepattonboggs.com Disney Cuts Ties With ABC News Executive Over ‘Racially Insensitive Remarks’

Amy Bloom, a Broward County prosecutor, was also fired this week after making a post on Facebook calling protestors “obnoxious” and that she’s “never seen such animals except at the zoo.”

Some Hampton Roads workers fired for insensitive racial social media posts The editor-in-chief of Bon Appétit has resigned after a photo of him in brownface resurfaced

SC town official fired over Facebook post calling for shooting of George Floyd protesters

squirepattonboggs.com 25 White is a race. Why is it okay for other groups to be proud of their heritage except white people? #whitepride #whiteprivilege #whitelivesmatter

squirepattonboggs.com 26 John Doe

Being Black is not a problem. White people are the problem. White privilege, white tears, white guilt and white supremacy are the problems.

John Doe #whitesupremacy #whitetears squirepattonboggs.com 27 squirepattonboggs.com 28 Jane Doe

squirepattonboggs.com 29 • Adam Rapoport, Bon Appetit Editor-in-Chief resigned after the emergence of an old photo of him wearing brown face • Exit comes after criticism on social media over Bon Appetit’s practices, including allegation that the magazine pays white editors to appear in videos but not people of color

squirepattonboggs.com 30 Managing and Responding to Leave of Absence Requests

squirepattonboggs.com Are Protests Protected Activities?

• Maybe. “Concerted activity” occurs when 2+ employees take action for their mutual aid or protection regarding terms and conditions of employment. • Fighting systemic racism and participating in #BlackLivesMatters protests – including that which exists at workplaces – may certainly be framed as protected, concerted activity. • Example: anti-immigrant rallies have been framed as a call for “job security” against undocumented workers.

squirepattonboggs.com 32 Are Protests Protected Activities?

Non-disruptive political advocacy for or against a specific issue related to a specifically identified employment Protected concern, that takes place during the employees' own time and in non-work areas

On-duty political advocacy for or against a specific issue Subject to restrictions imposed by related to a specifically identified employment concern lawful and neutrally applied work rules

Leaving or stopping work to engage in political advocacy Subject to restrictions imposed by for or against a specific issue related to a specifically lawful and neutrally-applied work rules identified employment concern

squirepattonboggs.com 33 Leaves for Protected Activity?

• Neither state nor federal law requires employers to provide time off to employees who wish to attend a protest. • Employers may treat an employee's time- off request to protest as they would any other leave request. • No call/no show = not protected. • However, in states where lawful off-duty conduct is protected, be aware of potential retaliation claims if you discipline or reprimand employees for such conduct outside of work.

squirepattonboggs.com 34 Leaves for Personal/Mental Health?

• NYC paid sick leave expressly provides that employees are able to use sick days if they have a mental illness/health condition, or if they are caring for a family member with the same. They can also use sick leave if they need a medical diagnosis, care, or treatment related to a mental illness/health condition, including seeking preventative care for mental illness/health condition. No proof of symptoms are required. • California’s paid sick leave law does not expressly state employees can take leave for mental health. However, proposed bill (AB 1844) specifically allows paid sick leave for the diagnosis, care, and treatment of behavioral health conditions, including mental illness, anxiety, depression, and substance use disorders. • Mental health illnesses are covered under the FMLA so it would be appropriate to permit employees to use sick leave for mental health illness/conditions. squirepattonboggs.com 35 Reconciling Value Statements with Legal Obligations

squirepattonboggs.com Should Corporate Employers Make a Statement?

squirepattonboggs.com 37 Make a Statement If It Is…

• Genuine • Consistent with policies and values of the organization • Committing to action - not a passive observation • Supported by budget and resource allocation • NOT UNLAWFUL

squirepattonboggs.com 38 When NOT to Make a Corporate Statement

When the leadership and ultimate decision-makers of the organization do not believe, agree or acknowledge: 1) the permanence of racism through organizations, industries and communities; or 2) that racism is a system of disproportionate opportunity and penalties based on skin color

squirepattonboggs.com 39 When NOT to Make a Corporate Statement

If you sell these:

squirepattonboggs.com 40 When NOT to Make a Corporate Statement

Think twice before saying this:

squirepattonboggs.com 41 Support Statements with an Action Plan

squirepattonboggs.com 42 Comply with Anti-Discrimination Laws and Policy

• Avoid terms that can be construed as “hate speech.” • Ensure that BIPOC employees are not singled out for MORE favorable treatment • Ensure that non-BIPOC employees are not LESS favorably treated, disparaged, stereotyped or vilified in an attempt to show solidarity with BIPOC employees. • Ensure the statement is consistent with established company policy. • When in doubt – consult with employment counsel.

squirepattonboggs.com 43 Anti-Harassment Training

Required Encouraged Per Statute California Colorado Connecticut Hawaii Delaware Massachusetts Illinois Ohio Maine Rhode Island New York Vermont

squirepattonboggs.com 44 Employer Opportunities

Employers have the opportunity to foster a more inclusive environment, to stand by their values, and improve business.

• Companies in the top quartile for racial and ethnic diversity are 36% more likely to have financial returns above their respective national industry medians. (Up from 33% in 2019 and 35% in 2014.)

• Companies in the top quartile for gender diversity are 20% more likely to have financial returns above their respective national industry medians.

• Companies in the top quartile of gender diversity on executive teams are 25% more likely to experience above-average profitability than peer companies in the fourth quartile. (Up from 21% in 2017 and 15% in 2014.)

• In the US, there is a linear relationship between racial and ethnic diversity and better financial performance: for every 10% increase in racial and ethnic diversity on senior executive teams, earnings before interest and taxes rise 0.8%.

squirepattonboggs.com 45 Employer Opportunities

Employers can decrease employee turnover by emphasizing values, policies and platforms to allow more employees to feel respected and heard. To maximize these opportunities, additional areas to consider:

• Implicit Bias Training

• Pay Equity Analysis

• D & I initiatives and Employee Resource Groups

• Partnerships with Diverse Third Parties

squirepattonboggs.com 46 Questions & Answers

squirepattonboggs.com Presenters

squirepattonboggs.com 48 Continuing Legal Education

For those of you who require CLE credits please note the following states have been approved or pending CLE AZ, CA, FL, GA, NJ, NY, OH, PA and TX.

Please write down the following affirmation code [AR723]

Within 2-3 business days after today’s session, you will receive an email with a link to the uniform certificate of attendance and program evaluation to complete and SUBMIT to my colleague, Robin Hallagan at [email protected]

squirepattonboggs.com 49 squirepattonboggs.com